Indiana, Kentucky and Other States Respond to Petition Asking for Expansion of the Ozone Transport Region

05.08.2014

By Kelly D. Bartley, Attorney, Bingham Greenebaum Doll LLP

As reported in the last issue of the Air Quality Letter, in December 2013, a group of northeastern states belonging to the Ozone Transport Region (OTR) established under Section 184 of the Clean Air Act petitioned EPA to expand the OTR to include nine additional, upwind states, including Indiana and Kentucky. (The original Petition was signed by eight states: Connecticut, Delaware, Maryland, Massachusetts, New Hampshire, New York, Rhode Island and Vermont. An Amended Petition was filed one day later adding Pennsylvania as a Petitioner.) The Petition, which was filed pursuant to Section 176A of the Clean Air Act, alleges that EPA-sanctioned air quality modeling shows that interstate transport of ozone and ozone precursor pollutants from the nine upwind states contribute significantly to OTR violations of the 2008 National Ambient Air Quality Standards (NAAQS) for ozone. Petitioners argue that addition of the states to the OTR is necessary to eliminate those contributions. In addition to Indiana and Kentucky, the Petition targets Illinois, Michigan, North Carolina, Ohio, Tennessee, Virginia and West Virginia.

By two-page letter dated Feb. 14, 2014, the nine targeted states collectively requested that EPA deny the Petition. The states assert that: (1) implementation of OTR VOC emissions reduction requirements would not lower ozone concentrations in the petitioning states by any substantial amount; (2) air quality analyses relied upon by the petitioning states are outdated and does not reflect current and expected future emissions and air quality; and (3) the Petition inadequately describes the effectiveness of the target states’ air pollution control programs and the emission rates. Pointing to the discretionary nature of EPA’s action on the Petition, the states further argue that a grant of the petition is especially unwarranted since interstate transport issues are being addressed in other ways and requested that “if EPA chooses to move forward with anything other than a denial of the petition” that they be informed “at the earliest date possible.”

EPA has until June 2015 to approve or disapprove the petition. If EPA were to approve the petition as submitted, Indiana, Kentucky and the other targeted states would become subject to more stringent ozone control requirements as well as more stringent new source review permitting requirements for certain sources of VOC emissions. More details on these requirements can be found in the fourth quarter 2013 issue of the Air Quality Letter.